ALL SUN SOLAR ENERGY CO., WAB No. 88-20 (WAB Dec. 31, 1990)
CCASE:
ALL SUN SOLAR ENERGY CO.,
DDATE:
19901231
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, DC
In the Matter of
ALL SUN SOLAR ENERGY CO., WAB Case No. 88-20
Subcontractor
GIORA BELKIN,
President
BEFORE: Jackson M. Andrews, Chairman, Stuart Rothman, Member,
Ruth E. Peters, Member
DATED: December 31, 1990
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
Giora Belkin for review of the amended decision and order of the
Administrative Law Judge ("ALJ"), dated March 17, 1988
(Attachment). In his decision the ALJ determined that
subcontractor All Sun Solar Energy Company ("All Sun") and its
president, Giora Belkin ("Belkin" or "Petitioner") had committed
"aggravated or willful" violations within the meaning of 29 C.F.R.
5.12(a)(1), which governs debarment proceedings for violations of
[1]
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[2] the labor standards provisions of the Davis-Bacon Related
Acts. (FOOTNOTE 1) The ALJ ordered debarment of All Sun and Belkin for
three years. Petitioner has requested review of the ALJ's decision
and order as it pertains to debarment of Belkin. For the reasons
set forth below, the Board denies the petition for review.
I. BACKGROUND
The pertinent facts in this case are set forth in the ALJ's
decision and order. This case involves a Department of Housing and
Urban Development ("HUD") project in Antelope Valley, Lancaster,
California. HUD awarded the construction contract to prime
contractor Goldrich & Kest, Inc. The prime contractor issued a
$220,000 subcontract to All Sun, a small company with seven
employees.
The Subcontractors Certification Concerning Labor Standards
and Prevailing Wage Requirements submitted by All Sun in November
1982 was signed by Belkin as president of the company, authorizing
himself to compile the weekly payroll report, execute the "weekly
statement of compliance," distribute the wages to the employees and
to complete the various forms pertaining to the prevailing wage
requirements on behalf of the corporation. All Sun submitted
certified payroll forms from November 20, 1982 to March 5, 1983,
purporting to show that All Sun was paying its employees in
compliance with Davis-Bacon requirements. The certified payrolls
[2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(FOOTNOTE 1) This matter involves the United States Housing Act of 1937
(42 U.S.C. [sec] 1437j), the National Housing Act, as amended (12
U.S.C. [sec] 1715c), and the Contract Work Hours and Safety
Standards Act ("CWHSSA") (40 U.S.C. [secs] 327-332). [2]
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[3] were signed by Belkin as president of All Sun. However, All
Sun's employees were paid less than the applicable prevailing wage
rate, and were not paid proper overtime compensation.
After an investigation of All Sun's employment and pay
practices, the Wage and Hour Division determined unpaid wages
totalling $37,670.23 were due. The prime contractor, Goldrich &
Kest, paid the full amount of back wages owed.
After a hearing, the ALJ issued his decision and order. The
ALJ noted that All Sun had not denied the existence of the
violations alleged by the Wage and Hour Division, and that the only
issue to be adjudicated was whether All Sun and Belkin should be
debarred (ALJ's Decision ("ALJD") at 1). The ALJ found that All
Sun and its officers were well aware that they were violating
Davis-Bacon requirements, yet failed to take corrective action (Id.
at 4). The ALJ further found that Belkin had knowledge of the
Antelope Valley project contract, as well as the wage rates due to
employees of All Sun (Id. at 3). The ALJ discredited Belkin's
testimony that he was not president or a responsible official of
All Sun during the relevant period. Notwithstanding Belkin's
testimony, the ALJ stated, Belkin certified and acted in such
capacities. (Id. at 3.) The ALJ found that Belkin, as president,
submitted certified payrolls to the contracting agency which were
falsified in a manner intended to conceal the prevailing wage and
overtime violations. The ALJ further found that Belkin failed to
explain the falsification of the certified payrolls he signed and
submitted. (Id. at 4.) [3]
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[4] The ALJ concluded that "All Sun, acting through its
president, Giora Belkin," violated the applicable Davis-Bacon
requirements by failing to pay the prevailing wage rate and by
failing to pay overtime compensation, and by submitting falsified
certified payrolls to simulate compliance with the recordkeeping
and prevailing wage requirements (ALJD at 4). The ALJ stated that
such violations had been held to constitute "aggravated or willful"
violations within the meaning of 29 C.F.R. 5.12(a)(1) (Id. at 4-5).
The ALJ -- citing Board precedent regarding a partner's
responsibility for all the acts of the partnership -- rejected
Belkin's contention that he was unaware of any violations because
he was not involved in the day to day operation of the company (Id.
at 5). The ALJ, stating that submission of falsified certified
payrolls to simulate compliance with Davis-Bacon requirements
cannot be explained by lack of intent or experience, also rejected
Belkin's contention that he did not intend to commit violations
(Id. at 5). The ALJ further concluded that the failure of Belkin
and All Sun to explain the falsification of the certified payrolls
defeated any possibility of relieving them from, or shortening, the
debarment period (Id. at 5).
Based on his findings of fact and conclusions of law, the ALJ
ordered that All Sun and Belkin be placed on the ineligible list
pursuant to 29 C.F.R. 5.12(a)(1) for a period of three years (ALJD
at 6).
II. DISCUSSION
Debarment for violation of the Related Acts is governed by 29
C.F.R. 5.12, which provides in Section 5.12(a)(1): [4]
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[5] Whenever any contractor or subcontractor is found by the
Secretary of Labor to be in [*] aggravated or willful
violation [*] of the labor standards provisions of any of
the applicable statutes . . . other than the Davis-Bacon
Act, such contractor or subcontractor or any firm,
corporation, partnership, or association in which such
contractor or subcontractor has a substantial interest
shall be ineligible for a period not to exceed 3 years
(from the date of publication by the Comptroller General
of the name or names of said contractor or subcontractor
on the ineligible list . . .) to receive any contracts or
subcontracts subject to [the Davis-Bacon Act or Related
Acts]. (Emphasis supplied).
In this case, the ALJ ordered that All Sun and Belkin be
placed on the ineligible list for a period of three years. Belkin
has petitioned the Board to review the ALJ's order as it pertains
to Belkin's debarment. However, based on our review of the record,
the Board affirms the ALJ's decision and order. Belkin no longer
argues that he was not the president or a responsible official of
All Sun during the period relevant to this case, an argument that
the ALJ discredited as a matter of fact. Belkin does argue
(Petition, at p. 2), however, that the ALJ "misapplied the law as
to Mr. Belkin's personal liability." The Board agrees that the
legal standard governing debarment for violation of the Related
Acts is whether "aggravated or willful" violations have been
committed. See A. Vento Construction, WAB Case No. 87-51 (Oct. 17,
1990), at p. 7 & nn.3, 4 (29 WH 1685). However, the Board cannot
accept Belkin's implication that his actions in this case
constituted mere inadvertence or negligence.
The violations found by the ALJ in this case included
submission of falsified certified payrolls to simulate compliance
with Davis-Bacon requirements -- an action which constitutes
"aggravated or willful" behavior under Board precedent. See, e.g.,
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[6] A. Vento Construction, supra, at p. 15, and cases cited
therein at p. 7 n.4. See also A. Vento Construction, at p. 17
(Member Rothman, concurring) ("The Board has held that
falsification of payroll data to cover up . . . violations is both
willful and aggravated."). Furthermore, Belkin's claim of lack of
personal involvement in the violations is not supported by the
record. As stated above, the ALJ discredited Belkin's testimony
that he was not the president or a responsible official of All Sun
during the relevant period. The ALJ also found that Belkin was
aware of the Antelope Valley project contract, as well as the wage
rates due to All Sun's employees. In addition, the ALJ found (ALJD
at 4) that "All Sun and its officers were well aware that they were
violating the provisions of the Act, and yet, failed to take any
corrective action" (emphasis supplied).
Furthermore, the falsified certified payrolls were signed by
Belkin as president of the company. Belkin attempts to
characterize his signature on the certified payrolls as "apparently
a mere formality." (Petition, at p. 4). However, by signing the
payrolls Belkin not only personally certified that the appropriate
wage rates were paid to All Sun employees and that the submitted
payrolls were correct and complete, but also certified that he
(Belkin) paid or supervised the payment of the persons employed by
the company throughout the relevant period (ALJD at 3). In
addition, as the ALJ noted (Id. at 4), Belkin failed to provide an
explanation for the falsification of the certified payrolls he
signed and submitted. In light of all these factual circumstances,
the record does not provide any credible basis for Belkin's [6]
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[7]
contention that he lacked personal responsibility for the
violations in this case.
The ALJ's decision and order placing All Sun and Belkin on the
ineligible list for a period of three years is affirmed. The
petition for review is denied. (FOOTNOTE 2)
BY ORDER OF THE BOARD:
____________________________
Jackson M. Andrews
Chairman [7]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(FOOTNOTE 2) In his petition, Belkin did not request that the debarment
period be reduced to less than three years. However, we note that
in A. Vento Construction (at p. 14), the Board held that
"aggravated or willful" violations of the labor standards
provisions of the Related Acts warrant an order imposing a three-
year debarment period absent extraordinary circumstances. See also
A. Vento Construction, at p. 18 (Member Rothman, concurring)
(falsification of payrolls warrants a three-year debarment period).
Persons and firms placed on the ineligible list pursuant to 29
C.F.R. 5.12(a)(1) are permitted to request removal from the
ineligible list after completing six months of the debarment
period, pursuant to the procedure set forth at 29 C.F.R.
5.12(c). [7]
